Excerpt: - - , quoting lord penzance, calls it a primary test, and if established is perfectly inconsistent with the document being a will. i think this argument is well founded......transferred consists. a more easily applied test is that of revocability. there is nothing in the suit document to show that kristnamma reserved the right to revoke it. on the contrary there is an undertaking not to alienate any part of the property during his lifetime. i consider that this is equivalent to a promise not to revoke the instrument, because if the executant intended to reserve that right he could not consistently have parted with the right to alienate. the same intention to give finality to the deposition is suggested by ex. 3, which is a conveyance of a portion of the property executed jointly by kristnamma and the plaintiff. the fact that the plaintiff was required to join is significant, and in the schedule the property is described as that which was conveyed by.....

Judgment:

Curgenven, J.

1. The plaintiff in this case is the daughter's son of one Kristnamma and the 2nd defendant is his sons's son. The 1st defendant is the 2nd defendant's father-in-law. The 1st defendant brought a suit upon a promissory note against Kristnamma and the 2nd defendant and attached the family property before judgment. Subsequently, but during the pendency of the suit, Kristnamma died. The 2nd defendant was brought on record as his legal representative and a decree was passed against the family property in his hands. In the course of the execution proceedings the plaintiff filed a claim petition asserting his right to a portion of the property on the strength of a conveyance deed executed by Kristnamma on 27th February 1917. The first question arising in this second appeal is whether the said deed is a Will or a conveyance reserving a life-estate.

2. The document on the face of it is of a non-testamentary character. It was so stamped and so registered. It is called a dakal dastaveju, which means a conveyance or settlement deed. It is true that a document which is not a Will in form, may yet be a Will in substance and effect; but as was held in Mahadeva Iyer v. Sankarasubramania Iyer : (1908)18MLJ450 . if an instrument is a deed in form, in order to hold that it is testamentary or in the nature of a Will, there must be something very special in the case; and unless there are circumstances which compel the Court to treat an instrument in the form of a deed as a Will, the Court will not do so. The leading argument of the appellant is that the document created no estate in prsenti. A more literal translation of the fourth sentence in para. 2 of the document is:

Therefore, on account of my affection for you, I have arranged that after my death the property shall belong to you.

3. It is certainly very difficult to derive from these words any immediate interest created in favour of the plaintiff. But the line between a Will and a conveyance reserving a life estate is a fine one, and it would be hard to define in some cases where the document has been held to be non-testamentary, wherein the personal interest which was transferred consists. A more easily applied test is that of revocability. There is nothing in the suit document to show that Kristnamma reserved the right to revoke it. On the contrary there is an undertaking not to alienate any part of the property during his lifetime. I consider that this is equivalent to a promise not to revoke the instrument, because if the executant intended to reserve that right he could not consistently have parted with the right to alienate. The same intention to give finality to the deposition is suggested by Ex. 3, which is a conveyance of a portion of the property executed jointly by Kristnamma and the plaintiff. The fact that the plaintiff was required to join is significant, and in the schedule the property is described as that which was conveyed by Kristnamma to him. This document seems also to lend some colour to the view that an immediate conveyance of interest was intended in Ex. F. I think that Kristnamma had the intention not to revoke the conveyance and this has always been regarded as one of the most important tests.

4. In Sita Koer v. Munshi Deo Nath Sahay 8 C. W. N. 614 Maclean, C. J., quoting Lord Penzance, calls it a primary test, and if established is perfectly inconsistent with the document being a Will. In that case too there were the further circumstances which were given weight to, that the document was registered as a non-testamentary document and so stamped. In Mohammad Abdul Ghani v. Fakhr Jahan Begam A. I. R. 1922 P. C. 281 the document in question was held not to be a Will, one of the grounds being as here that the executant resigned her right to make, any subsequent transfer of the property. In Rajammal v. Authiammal [1910] 33 Mad. 304 the District Judge has held affirming the District Munsif's judgment that the document was a Will, but this finding was reversed by this Court in second appeal, among the considerations given weight to being that in form the instrument was a registered Will and no power of revocation was reserved. The conclusion I reach in this case, agreeing with the learned Subordinate Judge, is that Kristnamma, while reserving a life-estate deemed himself to part with some interest in the property, and that he considered his act to be irrevocable. I find accordingly that the document is not a Will.

5. This conclusion is enough to dispose of the appeal, but a further point has been raised which must also, I think, be decided against the appellant. I said that Kristnamma died during the suit and a. decree was passed against the family estate of himself and the 2nd defendant.. After Kristnamma's death that estate was represented only by the 2nd defendant, and the 1st defendant, although he knew of the conveyance, Ex. F, refrained, it is alleged, for improper reasons, from impleading the plaintiff. It is, therefore, argued that so far as that portion of the estate which devolved on the plaintiff is concerned the decree was void. I think this argument is well founded. A case directly in point is Harischunder Biswas v. Puri Das Das 14 C. W. N. 1041. In Kaliappan Servai Karan v. Vardarajulu [1909] 33 Mad. 75 a decree was obtained against the estate of a deceased person in the hands of his widow. Subsequently it was found that his daughter's son had title to the estate under a Will and he was brought on record as the deceased's representative. It was pointed out that execution could not be allowed against him because a decree can only be executed against the legal representative who was made defendant in the suit or his or her representatives. On the authority of this case it is clear a fortiori that the decree cannot be executed against a portion of the estate the representative of which was not made a party to it. In Paramaswami Ayyangar v. Alamelu Nachiar Ammal [1918] 42 Mad. 76 the question arose whether the heir-in-law was competent to represent a portion of the estate which was being decreed to a legatee, and it was held that the legatee was a proper legal representative in respect of the property, title to which had passed to him on the testator's death.

6. Two cases have been cited which appear to favour the view put forward for the respondent. In Bachu Soorayya v. Toomuloori Chinna Anjaneyalu : (1919)36MLJ106 it was held that proceedings in execution against a person in possession will bind the interests of the real heir; but it was conceded that this was an exception to the general rule that proceedings in execution of a decree do not bind the interests of any person who was never brought on record as a party to the proceedings in the suit. Doraisami v. Chidambaram Pillai A. I. R. 1924 Mad. 130 was an execution matter which appears to have been decided on certain special considerations not applying here. I may refer finally to Khiarajmal v. Daim [1905] 32 Cal. 296 in which it was laid down by the Privy Council that a decree against a person who is not properly represented is void as against him.

7. A suggestion has been made that as the attachment was made during the lifetime of Kristnamma it prevailed against any title obtained by the plaintiff under Ex. F, treating it as a Will. This view receives no countenance from Section 64, Civil P. C., and is, I think, untenable. On this ground also the appeal fails and is dismissed with costs.